0120131022
06-20-2013
Davon Gregory, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
Davon Gregory,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120131022
Agency No. 200P-0344-2012-103872
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 10, 2013, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in a non-pay status position through the Agency's Vocational Rehabilitation and Employment Program training to be a Veterans Service Representative or Veterans Claim Assistant.
Complainant contacted the EEO Counselor. When the matter could not be resolved informally, the EEO Counselor e-mailed Complainant his Notice of Right to File a formal complaint on October 9, 2012. On November 15, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability, age (43 years old), and reprisal for prior protected EEO activity when:
1. he was not selected for a Veteran's Service Representative position;
2. in April 2011, Complainant was separated and subjected to being followed and spied on by coworkers for seeking medical documentation following his back injury;
3. in April 2011, the Supervisor requested that Complainant give her his social security number and date of birth, which Complainant refused to do;
4. on or about June or July 2011, Complainant found his personal veterans file and reported the violation to the Supervisor;
5. the Supervisor sexually harassed Complainant by having him organize mail with his back side facing others;
6. he was sexually harassed by a male co-worker; and
7. on November 15, 2011, Complainant was notified that he was not selected for the position of Veterans Service Representative, GS-7/11.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for failing to timely file a formal complaint. The Agency noted that Complainant received the Notice on October 9, 2012but did not file his complaint until November 15, 2012, beyond the 15-day time limit.
Complainant appealed. On appeal, Complainant indicated that he had submitted an e-mail to the EEO Counselor asking for an extension of time to file his formal complaint based on his mother's sudden illness and death. Complainant noted that he did not receive a response from the EEO Counselor. Complainant provided evidence of his mother's death to support his argument.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
The record indicated that the Agency sent Complainant the Notice via electronic mail on October 9, 2012. The Agency asserted that it was received by Complainant as the electronic mail was "delivered" on the same date. The Agency argued that his formal complaint was submitted on November 15, 2012, beyond the 15-day time limit.
The Commission is not persuaded by the Agency's determination that the instant formal complaint was not timely filed. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (August 25, 1992).
The Agency asserts that it sent the Notice by electronic mail. However, the EEO complaint processing regulations at 29 C.F.R. Part 1614 do not expressly address or define service by electronic mail. As such, the Commission finds that the Agency has not met its burden of establishing when Complainant received the Notice. See Fletcher v. Dep't of Commerce, EEOC Appeal No. 0120100071 (March 30, 2011); Bolt v. Dep't of Health and Human Serv., EEOC Appeal No. 020102899 (September 29, 2010).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 20, 2013
__________________
Date
2
0120131022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131022